Citation Nr: 0429796
Decision Date: 11/04/04 Archive Date: 11/10/04
DOCKET NO. 01-10 127 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Fort
Harrison, Montana
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Rebecca Feinberg, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1970 to
September 1974 and from December 1974 to August 1976.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a May 2000 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Fort
Harrison, Montana.
The Board notes that, in a written statement received by the
RO in December 2001, the veteran requested a local hearing
with an RO hearing officer. A November 2002 letter from the
RO scheduled the veteran for the requested hearing that same
month. However, the veteran failed to appear for his
hearing. Therefore, the Board concludes that all due process
has been met with respect to the veteran's hearing request.
The Board also notes that, in his March 2001 notice of
disagreement, the veteran expressed disagreement with the
RO's decisions regarding his claims for service connection
for both PTSD and a back condition. In his December 2001
substantive appeal (VA Form 9), the veteran perfected an
appeal only as to the claim for service connection for PTSD.
The Board will, therefore, confine the discussion herein to
the issue as set forth above.
FINDING OF FACT
The competent and probative medical evidence of record
preponderates against a finding that the veteran has a
current post-traumatic stress disorder (PTSD) diagnosis that
is related to service, or that the veteran has submitted
information sufficient for the RO to attempt verification of
any in-service stressor.
CONCLUSION OF LAW
Post-traumatic stress disorder was not incurred in or
aggravated by active military service. 38 U.S.C.A. §§ 1101,
1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran's August 1970 enlistment examination indicates
that an evaluation of his psychiatric condition was normal,
and he reported no history of any mental illness. A December
1974 re-enlistment examination and medical history report
showed identical results. A June 1976 service medical record
shows the veteran was seen for psychiatric evaluation. There
was no evidence that he was physically or psychologically
dependent on drugs. It was recommended that he was not in
any need of rehabilitation, and there was no psychiatric
contra-indication to whatever administrative disposition was
deemed appropriate. A July 1976 discharge examination and
medical history report shows the veteran was found to be
psychiatrically normal, and he reported no history of any
mental illness.
A June 1994 VA treatment record indicates the veteran sought
treatment for depression, which was reported to be related to
the death of six family members in the previous year. The
diagnosis was major depression, secondary to the deaths of
his family members.
A March 1995 VA mental clinic report shows the veteran
demonstrated symptoms of anxiety after losing six members of
his family. The assessment was anxiety.
VA treatment records dated in November and December 1996
indicate the veteran entered a treatment program for drug
dependency. He was reported to have a 22-year history of
marijuana use. He was also diagnosed with depression and
anxiety. The veteran indicated that he had no combat
experience while in the service. A November 1996 mental
clinic report shows the veteran was affectively depressed.
He indicated that old injuries kept him from holding a job.
A December 1996 treatment report indicates that while he was
in the program he became aware of symptoms associated with
PTSD, and requested an evaluation.
An April 1998 treatment report shows the veteran had a
diagnosis of depression. Subsequently, a January 2000 VA
outpatient record shows the veteran had no evidence of
depression.
A February 2001 VA treatment report shows the veteran had no
positive responses to a PTSD screening protocol.
A separate February 2001 VA record shows the veteran related
an incident in service when he witnessed a gruesome motor
vehicle accident and was the first person on the scene. He
stated that two of his comrades were decapitated. He
reported having recurring stressful thoughts about the event.
The treating physician referred him to the Vet Center for
counseling. The physician found no significant neural
vegetative signs or symptoms consistent with significant
depression, but felt that the veteran's symptoms merited
counseling and close observation. No PTSD diagnosis was
made.
On his December 2001 VA Form 9, the veteran indicated that he
was receiving treatment for PTSD at the Vet Center, and he
provided the address.
A June 2002 VA record shows that the veteran was concerned
about PTSD. A diagnostic impression of PTSD was noted, and
the physician believed the veteran needed counseling and
referred him to psychiatry at the VA Medical Center.
PTSD was reported as an active problem in an October 2002 VA
outpatient record.
In a February 2003 VA treatment report, the veteran indicated
that he had a diagnosis of PTSD and was seen regularly at the
Vet Center.
In a March 2003 letter, the RO requested records from the Vet
Center in reference to the veteran and his treatment for
PTSD. In a March 2003 memorandum, the RO indicated that the
Vet Center had called and stated that it had no records on
the veteran except for a referral from another physician for
treatment.
In December 2003, the RO mailed the veteran a letter
informing him of the steps needed to substantiate his claim
for PTSD. According to the claims file, this was the third
time the RO had mailed the veteran a PTSD questionnaire and
asked him to provide information and details about his
claimed in-service stressors.
II. Analysis
A. Veterans Claims Assistance Act
The Veterans Claims Assistance Act (VCAA), Public Law No.
106-475, 114 Stat. 2096 (2000), substantially amended the
provisions of chapter 51 of title 38 of the United States
Code and, among other things, eliminated the requirement of a
well-grounded claim and enhanced the notice and assistance to
be afforded to claimants in substantiating their claims.
VCAA § 3(a), 114 Stat. 2096, 2096-97 (now codified as amended
at 38 U.S.C.A. §§ 5103, 5103A (West 2002)). In addition, VA
has published regulations to implement many of the provisions
of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now
codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a) (2004)).
The Board is aware that there has been a significant amount
of analysis pertaining to the effective date, the scope, and
the remedial aspects of the VCAA. See, e.g., Quartuccio v.
Principi, 16 Vet. App. 183 (2002); Kuzma v. Principi, 341
F.3d 1327 (Fed. Cir. 2003); Paralyzed Veterans of America v.
Secretary of Veterans Affairs, 345 F.3d 1344 (Fed. Cir. 2003)
(but see Public Law No. 108-183, § 701, 117 Stat. 2651, 2670-
1 (Dec. 16, 2003); Conway v. Principi, 353 F.3d 1359 (Fed.
Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
See also VAOPGCPREC 11-00 (Nov. 27, 2000); VAOPGCPREC 7-2003
(Nov. 19, 2003); VAOPGCPREC 8-2003 (Dec. 22, 2003);
VAOPGCPREC 1-2004 (Feb. 24, 2004).
Given the uncertainty as to the precise application of the
VCAA, exemplified in the authorities cited above, the Board
assumes that the VCAA is applicable to this appeal. We are
aware that in Pelegrini, cited above, the U.S. Court of
Appeals for Veterans Claims stated that, under the VCAA,
the Secretary must provide notice . . . that
informs the claimant of any information and
evidence not of record (1) that is necessary to
substantiate the claim, (2) that VA will seek to
provide, and (3) that the claimant is expected to
provide. Furthermore . . . , in what can be
considered a fourth element of the requisite
notice, VA must "also request that the claimant
provide any evidence in the claimant's possession
that pertains to the claim." 38 C.F.R.
§ 3.159(b)(1); see 38 U.S.C. § 5103A(g) . . . .
Pelegrini, supra, at 121.
The VA General Counsel has issued a precedent opinion
interpreting the Court's decision in Pelegrini. In essence,
and as pertinent herein, the General Counsel endorsed the
notice requirements quoted immediately above, and held that,
to comply with VCAA requirements,
the Board must ensure that complying notice is
provided unless the Board makes findings regarding
the completeness of the record or as to other
facts that would permit [a conclusion] that the
notice error was harmless, including an
enumeration of all evidence now missing from the
record that must be a part of the record for the
claimant to prevail on the claim.
VAOPGCPREC 7-2004 (July 16, 2004). Considering both the
decision of the Court in Pelegrini and the opinion of the
General Counsel, the Board finds that the requirements of the
VCAA have been satisfied in this matter, as discussed below.
In July 2001 and January 2003 letters, the RO informed the
veteran of the VCAA and its effect on his claim. In
addition, the veteran was advised, by virtue of a detailed
October 2001 statement of the case (SOC) and June 2003 and
March 2004 supplemental statements of the case (SSOC), issued
during the pendency of this appeal, of the pertinent law, and
what the evidence must show in order to substantiate his
claim. We therefore believe that appropriate notice has been
given in this case. The Board notes, in addition, that a
substantial body of lay and medical evidence was developed
with respect to the veteran's claim, and that the SOC and
SSOCs issued by the RO clarified what evidence would be
required to establish entitlement to service connection. The
veteran responded to the RO's communications with additional
evidence and argument, thus curing (or rendering harmless)
any previous omissions. Further, the claims file reflects
that the June 2003 SSOC contained the new duty-to-assist
regulation codified at 38 C.F.R. § 3.159 (2004). See Charles
v. Principi, 16 Vet. App. 370, 373-74 (2002).
The Board concludes that the notifications received by the
veteran adequately complied with the VCAA and subsequent
interpretive authority, and that he has not been prejudiced
in any way by the notice and assistance provided by the RO.
See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993);
VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Likewise, it
appears that all obtainable evidence identified by the
veteran relative to his claim has been obtained and
associated with the claims file, and that neither he nor his
representative has identified any other pertinent evidence,
not already of record, which would need to be obtained for a
fair disposition of this appeal. Thus, for these reasons,
and for the additional reasons discussed below in this
decision, any failure in the timing or language of VCAA
notice by the RO constituted harmless error.
Accordingly, we find that VA has satisfied its duty to assist
the veteran in apprising him as to the evidence needed, and
in obtaining evidence pertaining to his claim, under both
former law and the VCAA. The Board, therefore, finds that no
useful purpose would be served in remanding this matter for
yet more development. Such a remand would result in
unnecessarily imposing additional burdens on VA, with no
additional benefit flowing to the veteran. The Court of
Appeals for Veterans Claims has held that such remands are to
be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en
banc), vacated on other grounds sub nom. Winters v. Gober,
219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430
(1994). In fact, the Court has stated, "The VCAA is a
reason to remand many, many claims, but it is not an excuse
to remand all claims." Livesay v. Principi, 15 Vet. App.
165, 178 (2001) (en banc).
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002).
When there is an approximate balance in the evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2004).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that an appellant need
only demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail. The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.
B. Service Connection for PTSD
In order for service connection to be awarded for PTSD, three
elements must be present: (1) a current medical diagnosis of
PTSD; (2) medical evidence of a causal nexus between current
symptomatology and a claimed in-service stressor; and
(3) credible supporting evidence that the claimed in-service
stressor actually occurred. 38 C.F.R. 3.304(f) (2004); Cohen
v. Brown, 10 Vet. App 128 (1997). With respect to the second
element, if the evidence shows that the veteran did not serve
in combat with enemy forces during service, or if there is a
determination that the veteran engaged in combat but the
claimed stressor is not related to such combat, there must be
independent evidence to corroborate the veteran's statement
as to the occurrence of the claimed stressor. Doran v.
Brown, 6 Vet. App. 283, 289 (1994). The veteran's testimony,
by itself, cannot, as a matter of law, establish the
occurrence of a non-combat stressor. See Dizoglio v. Brown,
9 Vet. App. 163, 166 (1996). In the present case, the
veteran has not contended, nor does his military service
record show, that he engaged in combat while in service.
A review of the veteran's claims file shows that he has never
undergone an extensive psychiatric evaluation that resulted
in a diagnosis of PTSD. Instead, he related the story about
witnessing a motor vehicle accident in service to a general
medical doctor, who indicated that the veteran showed no
signs of depression but should be evaluated and counseled.
Other VA treatment records listed PTSD either as an active
problem reported by the veteran or as an impression, based
upon the statements of the veteran. The veteran received a
referral to seek counseling at the Vet Center, and the RO
requested any records from the Vet Center, but it responded
that it had no documentation on the veteran other than his
referral.
However, even assuming the veteran had a current diagnosis of
PTSD, VA has been unable to even attempt verification of any
claimed stressors because the veteran, despite three
requests, did not provide the RO with any specific
information about the indicated motor vehicle accident or any
other claimed in-service stressor. The incident, as
described to a VA physician in a February 2001 treatment
report, did not include any specific details as to place,
time, or people involved such as would allow the RO to even
attempt to verify the stressor. Because the veteran did not
engage in combat, without a verifiable stressor, he cannot be
service connected for PTSD.
Finally, the Board notes that, while the veteran has been
diagnosed with depression and anxiety, those disorders arose
and were first documented man years after he left service,
and neither the service records nor any medical opinion of
record shows a link between those diagnosed conditions and
the veteran's military service. He therefore cannot be
service connected for those disorders.
While the veteran may sincerely believe that he has PTSD
which was caused by some incident of service, it is well
established that, as a layperson, he is not considered
capable of opining on matters requiring medical knowledge.
See Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a
layperson is generally not capable of opining on matters
requiring medical knowledge"), aff'd sub nom. Routen v.
West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S.
Ct. 404 (1998); Espiritu v. Derwinski, 2 Vet. App. 492
(1992); Moray v. Brown, 5 Vet. App. 211 (1993).
As discussed above, the competent evidence of record does not
establish that the veteran has a clinically supported current
diagnosis of PTSD. Furthermore, the veteran has not provided
information with which the RO could attempt to verify an in-
service stressor. As the evidence preponderates against the
claim for service connection for PTSD, the benefit-of-the-
doubt doctrine is inapplicable, and service connection must
be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102;
Gilbert, supra.
ORDER
Service connection for post-traumatic stress disorder is
denied.
__________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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